Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

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Tag: federalism

Two hundred and sixty years ago, James Madison was born in Virginia. His life was long and eventful, comprising the American Revolution, the writing and ratification of the U.S. Constitution, the founding of political parties, the War of 1812, and the rise of Andrew Jackson. The struggles that would culminate in the Civil War were evident in the last years of his life.

Along with his political career, Madison proved to be one of this nation’s most insightful and certainly its most influential political theorist. He is often accorded the twin titles of Father of the Constitution and the Bill of Rights. No doubt those titles claim too much for him or any other mortal. But according him those titles is not far from the truth.

What would surprise Madison about our current constitutional and political arrangements?

He would be surprised and, I think, displeased by the size and scope of the federal government. Madison was a limited government man. He thought the general welfare clause in Article I of the Constitution was simply a shorthand way of mentioning other enumerated powers, not a general grant of power for Congress to pursue whatever it might think served the general welfare. As he wrote, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” Of course, for some decades now, the courts have permitted Congress broad powers under the general welfare clause.

He would also be taken aback by the all but plenary power accorded to Congress under the Commerce Clause of Article I. How could (can) a limited government be reconciled to such plenary power? Moreover, as he said in Congress, “if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out.”

I think Madison would also be surprised by how far the executive has taken on the prerogatives of an English king, in fact if not in law. Like many republicans of the founding era, he worried that the legislature would dominate the executive. We live in a time where Congress happily delegates its power to the executive branch and awaits the executive’s budget agenda. At the same time, Madison worried that executives, presidents and kings, had every reason to declare and make war, the latter being the most dreaded of “all enemies to public liberty.” As he wrote in 1795:

Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes and the opportunities of fraud growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could reserve its freedom in the midst of continual warfare.

In this light, it is perhaps inevitable that the authors of The Executive Unbound dismiss Madison in favor of Carl Schmitt, the author of The Concept of the Political and from 1933 onward, Preußischer Staatsrat and President of the Vereinigung nationalsozialistischer Juristen.

For Madison, the whole point was to bind government through a Constitution, enumerated powers, and ambition pitted against ambition. His was a noble vision of politics in service to individual liberty. Let us hope that we are not living “after the Madisonian Republic.”

A Government Accountability Office report on duplicative federal programs is prima facie evidence that the government is a bloated mess. For example, there are 82 federal programs involved in teacher quality, 80 programs involved in economic development, and over 100 programs involved in surface transportation.

Sen. Tom Coburn (R-OK) summed it up best in his press release on the GAO report:

This report confirms what most Americans assume about their government. We are spending trillions of dollars every year and nobody knows what we are doing. The executive branch doesn’t know. The congressional branch doesn’t know. Nobody knows.

Nobody knows because no human being could possibly keep sufficient tabs on thousands of programs in a $3.8 trillion federal budget. Compounding the problem is the fact that policymakers devote much of their time to fundraising, campaigning, and other distracting activities.

The report’s takeaway, therefore, should be that the federal government’s scope needs to be drastically curtailed. Unfortunately, a typical response to the report has been to cite it as further evidence that policymakers must “eliminate waste” and “make government more efficient.” Coburn says “This report also shows we could save taxpayers hundreds of billions of dollars every year without cutting services. And, in many cases, smart consolidations will improve service.”

No, no, no.

Most of the “services” discussed in the report need to be eliminated, not consolidated. Turning 82 teacher quality programs into, say, 10 doesn’t change the fact that the federal government should not be involved in education in the first place. (Not to mention that the federal government’s involvement in education has been a failure.)

Throughout the decades, numerous efforts have been undertaken to clean up the federal bureaucracy (e.g., Hoover Commission, Grace Commission, and Al Gore’s “Reinventing Government”). None of these house cleaning endeavors curbed the federal government’s expansion, let alone tamed the bureaucratic wilds.

James Madison wrote in Federalist 45 that the powers delegated to the federal government by the Constitution “are few and defined.” However, the federal government gradually assumed powers that are now many and undefined. Excessive bureaucracy is a natural, and inevitable, result. Thus, those policymakers who are sincerely concerned with bureaucratic duplication and waste should focus their efforts on reinstituting limits on the government’s capacity to spend. Policymakers who pretend otherwise are just wasting their time — and that of taxpayers.

Swearing an oath to support the Constitution also obligates governors to use lawful means to prevent its unlawful abuse. Governors who believe ObamaCare to be unconstitutional are as duty-bound to stop implementing the law as they are to challenge it in court…

It is the height of fiscal irresponsibility to be making new spending commitments (1) when the federal deficit is $1.5 trillion and state budget deficits are a cumulative $175 billion, (2) when those new commitments create a framework for a massive new entitlement program, and (3) when that new spending comes under the auspices of a law that has been invalidated by one federal court and may be invalidated by the nation’s highest court.

So far, the only governors I’ve seen take a firm stand against implementing the law are Rick Scott (R-FL) and Sean Parnell (R-AK), who respectively govern the fourth-largest and the fourth-smallest states. (Disclosure: I served on Rick Scott’s transition team.)

Today’s ruling vindicates the constitutional first principle that ours is a government of delegated, enumerated, and thus limited powers. Like Judge Hudson in the Virginia case, Judge Vinson recognized that the individual mandate represents an unprecedented and improper incursion beyond those powers: the federal government, under the guise of regulating commerce, cannot require that people engage in economic activity.

And this is as it should be: if the only limit on congressional power were Congress’ own assessment of the wisdom of each assertion of such power, the Constitution would be obsolete – as would any conception of checks and balances. James Madison, the author of the Federalist Paper (51) explaining how man’s non-angelic nature requires explicit limits on those who govern, would spin in his grave. As even would Alexander Hamilton – perhaps the Framer most favorably disposed to strong central power – who cautioned that courts should not be in the business of evaluating the “more or less necessity” of a piece of legislation but rather define judicially administrable rules to guide (but also limit) Congress’s actions.

And so today’s ruling, in a lawsuit that now has 26 states as plaintiffs – with two others challenging the health care “reform” separately – represents the latest and most significant victory for federalism and individual liberty. This will not end until the Supreme Court has its say, but the tide is clearly running in freedom’s favor.

I will comment further once I’ve had a chance to read through the ruling.

The symbolism of today’s House vote is striking. Within a year of ObamaCare’s enactment, the House of Representatives has voted overwhelmingly to repeal it.

That didn’t happen with Social Security. It didn’t happen with Medicare. Social Security and Medicare did not face sustained public opposition from the moment they were introduced in Congress. They did not pass by one vote, in the dead of night. They were not challenged as unconstitutional by half the states in the union. They were not struck down as unconstitutional by a federal court within a year of enactment.

The House vote to repeal ObamaCare is just the latest sign that ObamaCare goes too far, that it creates a more intrusive government than the American people are willing to accept.

But the House vote is not mere symbolism, as the Obama administration would have us believe. This vote has moved the ball forward on repeal. This and further similar votes in both the House and Senate will reveal where members stand on repealing ObamaCare. Voters may use that information to replace pro-ObamaCare members with people who will vote to repeal ObamaCare in the next Congress. That’s how the political system works.

At the same time, this repeal vote makes it more likely that the Supreme Court will strike down ObamaCare. Like it or not, the Supreme Court follows the election returns. This vote shows the Court that it will not pay a price in the public’s esteem if it overturns ObamaCare.

Today’s vote makes it more likely that someone with the power to scrap ObamaCare will do so – and the Obama administration knows it. Why else would they come out with both guns blazing against a purely “symbolic” act?

When that happens, it will be a good day for America. Real health care reform is impossible while ObamaCare remains on the books.

The editorialists at the The New York Times are out of sorts this morning over a Tea Party backed constitutional amendment that would give state legislatures the power to veto any federal law or regulation if two-thirds of the legislatures approved. Despite the backing of incoming House majority leader Eric Cantor and legislative leaders in 12 states, the proposal has little chance of succeeding, the Times avers, “but it helps explain further the anger-fueled, myth-based politics of the populist new right.” Indeed, it expresses “with bold simplicity the view of the Tea Party and others that the federal government’s influence is far too broad.”

Well? Isn’t that what the election last month was all about? But right there, for the Times, is the problem: “In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty.” With the Tea Party, however, the tables have turned. What most troubles the Times, it seems, are Tea Party signs that say “We Want Less!”

And nowhere is that better captured than when the Times speaks of “the mistaken vision of federalism on which [this amendment] rests. Its foundation is that the United States defined in the Constitution are a set of decentralized sovereignties where personal responsibility, private property and a laissez-faire economy should reign. In this vision, the federal government is an intrusive parent.”

If that vision is “mistaken,” so too, apparently, were the Founders, because it was their vision as well. To be sure, the Constitution they crafted held “competing elements, some constraining the national government, others energizing it,” as the Times writes. And true also, the government they shaped was meant “to promote economic development that would lift the fortunes of the American people” – but mainly by securing the framework for liberty, the rule of law, not by pursuing prosperity through government programs. In particular, the Framers believed in personal, not government, responsibility; private, not collective, property; and a free, not a planned, economy. And they left most power with the states, where it would be exercised responsibly, or not – something to keep in mind as we watch our “failed states” asking Washington (read, the other states) to bail them out.

The Washington Post reported yesterday that Republican senators were turning their back on a massive spending bill stuffed full of their own earmarks. Those earmarks, the Post noted, included quite a few to benefit Mississippi, the home state of Senators Roger Wicker and Thad Cochran:

Wicker, along with Cochran, had by then already sponsored earmarks in the spending bill that would fund an airport expansion in Tunica ($1.75 million), new riverwalk lights in Columbus ($300,000), improvements to a hiking and biking trail in Hattiesburg ($700,000) and improvements to an assortment of bridges, highways, trails, railways and streets across Mississippi.

A burgeoning Tea Party revolt against earmarks caused the bill to be withdrawn. Senate Majority Leader Harry Reid held a press conference to defend earmarks as the constitutional duty of the people’s elected representatives. (And, as many of our friends have emailed to tell us, held up a copy of the Cato pocket Constitution — 10 for $10 this Christmas season! — to make his point. Ah, well.)

But the real problem here is not earmarks. The underlying issue is not whether members of Congress or unelected bureaucrats spend the money that Congress appropriates for highways and the like. The real question is, why are local roads and bridges and hiking trails and riverwalk lights being paid for by taxpayers across the country?

If the people of Columbus, Mississippi, want new lights on their riverwalk, why are they asking the families of New Hampshire and Indiana and Oregon to pay for them? Shouldn’t they pay for their own lights, and let the people of Hattiesburg pay for their own hiking trails, and let the people of Oregon pay for any roads, bridges, or hiking trails that they value?

The fundamental problem is not earmarks. It is that the federal government is paying for clearly local and state responsibilities. Opponents of excessive spending should not stop at an earmark ban. They should insist that the federal government pay for national needs and leave state and local projects to the states and towns that want them.